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Denying equality smacks of apartheid

By Alastair Nicholson - posted Wednesday, 7 June 2006

Unlike most progressive and democratic Western countries Australia, at a national level, has adopted a deliberately homophobic and in my view shameful, approach to same sex relationships.

This attitude reached its nadir in the passage of the Marriage Amendment Act 2004. That Act, unaccountably supported by the Labor Opposition, but opposed by the Greens and Democrats, proscribed both same sex marriages contracted in Australia and the recognition of same sex marriages that were validly contracted overseas. It was also designed to prevent same sex couples adopting children from overseas.

The definition of marriage adopted in the Act reflects the definition ascribed to marriage by Lord Penzance in Hyde v Hyde and Woodmansee in 1866, where his Lordship defined marriage as:


The voluntary union for life of one man and one woman, to the exclusion of all others.

It is worth noting that Lord Penzance’s definition was inaccurate at the time that he gave it and remains inaccurate today. It is difficult to understand how even in 1866, marriage could have been defined as a union for life, having regard to the passage of the Divorce and Matrimonial Causes Act in England in 1857.

Given that the likelihood of divorce is seen to be increasing, it is a nonsense to refer to marriage as a union for life today. This legislation is both sad and mean spirited and it is a reflection on the leadership provided by the Howard Government that it was found necessary to return to a 19th century definition of marriage propounded by a court in a country with an established church, the Church of England, whose doctrines the definition reflects. It is worth noting that the Australian Constitution specifically proscribes the establishment of any religion.

I have over the years made a number of addresses on this subject which have in turn attracted their share of both criticism and support. I often found the letters from those who supported my stance very moving. What touched me particularly were the views of the parents and friends of gay men and women, people who are too often forgotten in the furor of debate. They explained the damaging consequences of a lack of societal respect for their children, and told of how social and legal blindness to their children's relationships placed stress upon the entire extended family.

It left me wondering whether any of the protagonists had really stopped to think that lesbians and gay men were part of a wider family context and I, as a parent, was left wondering how I would feel if my grown-up children were talked about in the tones of derision used by such protagonists in the media or in letters that cross my desk. These are often supported by literal and nonsensical views from purported Christians as to the meaning of obscure passages of the scriptures. These views seem far removed from the Christian ethic towards neighbours and children.

These opponents of recognition of same sex relationships frequently ignore the fact that these relationships often involve children, of whom one of the couple is often the biological mother or father.


Most States and Territories do not permit the adoption of children by same sex couples which means that only the biological parent of the child is recognised by the law as a parent. The other partner is the subject of positive legal discrimination, as is the child in relation to that person. If neither partner is the biological parent, the situation is worse.

This creates obvious difficulties in innumerable ways, such as the operation of inheritance law, requirements for parental consent to medical treatment, guardianship of the child in the event of the death of the biological parent, and the like. It is not an overstatement to say that the refusal of recognition is an act of overt cruelty towards, and neglect of, the rights of children thus affected. It also shows a lack of respect for the couple and the children involved.

It is this concern for respect which unites human rights proponents and it is the denial of respect which underpins discrimination.

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A more detailed discussion can be found in the Melbourne University Law Review Vol. 29 Number 2 of 2005 at 556, entitled "The Legal Regulation of Marriage".

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About the Author

The Honourable Alastair Nicholson AO, RFD, QC is the Former Chief Justice of the Family Court of Australia. He is an Honorary Professorial Fellow at the Department of Criminology, University of Melbourne.

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